RELEASE OF LIABILITY AND ASSUMPTION OF RISK
In exchange for the use and enjoyment of exercise equipment at the Tonal Showroom or at a Tonal marketing event (the “Activity”) as provided by Tonal Systems, Inc., a Delaware Corporation with its principal place of business at 617 Bryant Street, San Francisco, CA, 94107 (“Company”), I agree to all of the terms and conditions in this agreement (“Agreement”). This Agreement applies to any Activity I engage in on or after today.
I AM AWARE THE ACTIVITY MAY BE DANGEROUS AND INVOLVE RISK OF SERIOUS INJURY, DEATH, AND/OR PROPERTY DAMAGE. I ACKNOWLEDGE THAT ANY INJURIES SUSTAINED MAY BE COMPOUNDED BY NEGLIGENT EMERGENCY RESPONSE OR RESCUE. I PARTICIPATE VOLUNTARILY IN THE ACTIVITY KNOWING THE DANGER INVOLVED AND ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DEATH, OR PROPERTY DAMAGE, WHETHER CAUSED BY COMPANY’S NEGLIGENCE OR OTHERWISE.
I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT AND I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO A JURY TRIAL.
Release. On behalf of myself and my next of kin, heirs and representatives, I expressly waive and release all claims, known now or discovered later, against Company and its shareholders, directors, officers, employees, affiliates, agents, representatives, licensors, suppliers, service providers, successors, and assigns (collectively, “Releasees”), and their respective successors and assigns, on account of injury, death, or property damage arising out of the Activity, and arising out of Company’s or Releasees’ negligence or otherwise. I promise not to bring any such claim and forever release and discharge Company and Releasees from liability.
I waive my rights under California Civil Code § 1542 or any similar provision, knowing that I waive any right, claim, or cause of action that might arise after executing this Agreement, even if those claims or causes of action might result from discovering currently unknown facts.
California Civil Code § 1542: A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Authorization to Record and Use Recordings and Name. I authorize Company, its affiliates, subsidiaries, successors, assigns and licensees, and all Activity sponsors and contractors (collectively, “Activity Sponsors”), to: (1) photograph, film, tape or otherwise record or capture my appearance in connection with the Activity, including without limitation my statements, performance, likeness, voice, name, identity, avatar, silhouette, body dimension, shape, posture and other personal characteristics (collectively, “Appearance”); (2) edit, reformat, and otherwise modify and prepare derivative works of the resulting photographs and any recordings (collectively, “Recordings”); and (3) reproduce, publish, distribute, and exhibit such Recordings, and any biographical and other information or material concerning me that may appear in the Recordings or that I may provide to Activity Sponsors (“Activity Information”), including in connection with the Activity and/or any advertisement or promotion of the Activity or any product or service, in whole or in part, by any and all means, media, devices, processes and technology now or hereafter known or devised, in perpetuity and throughout the universe. Activity Sponsors shall have no obligation to use my Appearance or the Recordings.
I RELEASE ACTIVITY SPONSORS FROM ANY AND ALL CLAIMS ARISING OUT OF ORIN CONNECTION WITH SUCH USE, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR INVASION OF PRIVACY, INFRINGEMENT OF ANY RIGHT OF PUBLICITY, DEFAMATION, AND ANY OTHER PERSONAL AND/OR PROPERTY RIGHTS.
I may not terminate the rights granted here or seek injunctive or equitable relief with respect to the rights granted here. Company may use and authorize others to use all or parts of the Recordings. I hereby assign to Company, and Company shall own, all right, title and interest, including copyright, in and to the Recordings, including all intellectual property rights thereto, and all proceeds from the Recordings and use of my Appearance in the Recordings. Company may, at its sole discretion, use and dispose of the Recordings without limitation. I waive any right of inspection or approval of the use of my Appearance and any Activity Information. I confirm my authority to grant these rights. I confirm that any factual statements made by me in the Recordings are true to the best of my knowledge.
Authorization to Collect and Use Data. In connection with the Activity, I may provide to Company (1) information such as my name, contact information, age, gender, and other demographic, physical, physiological, or identifying characteristics; and (2) “Activity Data,” defined as data about my use of or interaction with Company products or services. By voluntarily participating in the Activity, I grant Company permission to collect, capture, record, and store any of the foregoing information and Activity Data, and grant Company a license to use such information and Activity Data for any purposes whatsoever.
Comments, Feedback, and Ideas. I assign Company all right, title, and interest in and to all comments, feedback, and ideas I may share with Activity Sponsors, without additional compensation or any acknowledgement. Without limiting the foregoing, to the extent that I retain any right, title or interest in or to any such comments, feedback or ideas, I authorize Company to use and exploit such comments, feedback and ideas for any purposes whatsoever.
Company is not responsible for arranging for or carrying any insurance of any kind for my benefit. I am solely responsible for obtaining any health, life, travel, accident, property or other insurance relative to any injuries or other loss I may sustain while participating in the Activity.
Dispute Resolution. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of California, without regard to its principles of conflicts of law, and regardless of my location. Except for disputes qualifying for small claims court, all disputes arising out of or related to this Agreement or any aspect of my relationship with Company will be resolved through final and binding arbitration before a neutral arbitrator. Company and I are waiving the right to a jury trial. Any disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability or validity of the arbitration provision or any portion of the arbitration provision, shall be decided by an arbitrator, not a court or judge. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
I may opt out of arbitration by emailing firstname.lastname@example.org within thirty (30) days of accepting this Agreement with my full name, address, and a statement declining this arbitration agreement.
The American Arbitration Association will administer the arbitration under its Consumer Arbitration Rules (www.adr.org/consumer), as amended by this Agreement. The arbitrator will conduct any hearings by teleconference or videoconference, unless the arbitrator determines on request by me or by Company that an in-person hearing is appropriate at a location reasonably convenient to both parties based on their ability to travel and other pertinent circumstances. If the parties do not agree on a location, the AAA or arbitrator will choose. The arbitrator’s decision will follow this Agreement’s terms and be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance, but only to the extent necessary to provide relief warranted by the individual claim in arbitration. Any arbitration award may be confirmed and enforced in any court with jurisdiction. Nothing in this Agreement precludes me from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against Company.
Entire Agreement. This Agreement is the sole and entire agreement between Company and me about the subject matter in this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, written or oral, about the same, except that if I am a Tonal user and have accepted the Tonal Terms of Service, this Agreement supplements the Terms of Service. If there is any conflict between this Agreement and the Terms of Service, the Terms of Service will control. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, that shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement is binding on and shall inure to the benefit of Company and me and our respective successors and assigns.